Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Hansard source

Family law is the one jurisdiction of the federal judicial system to which almost all Australians have had exposure at some level at some time in their lives. It is a sad fact of life that virtually every one of us will either have first-hand experience or have someone, most likely several people, within our circle of friends who has had contact with the court. It is also a sad fact of life that family law disputes are often amongst the most intractable matters to come before a court, often in a context of extreme personal bitterness and too often occasioned by violence and abuse of the most horrible kind.

It is also a fact of life that any attempt to resolve these disputes will often leave both parties feeling aggrieved and, much worse, their children exposed to the fallout and remaining at risk of violence and abuse. Many of the failed relationships that come before the courts have been blighted by mental illness and substance abuse problems, sometimes on both sides, and, because judges are human, the courts will not always get it right.

In disputes involving children the principal guidance the act provides is that the best interest of the child is the paramount consideration. Just how the best interests of children can be determined, however, is and will always be a vexed question.

Mr Deputy Speaker Scott, as I know you would be well aware, in December 2003 the House of Representatives Standing Committee on Family and Community Services tabled a unanimous report titled Every picture tells a story. The committee was asked to consider whether, given that the best interests of the child are the paramount consideration, what other factors should be taken into account in deciding the respective time each parent should spend with their children, post separation. The committee, headed by Kay Hull MP, heard evidence from more than 2,000 witnesses over six months. One of its findings, which informed many of its recommendations, was:

We are convinced that sharing responsibility is the best way to ensure as many children as possible grow up in a caring environment. To share all the important events in a child’s life with both mum and dad, even when families are separated, would be an ideal outcome.

This was the finding of the entire committee, across party lines. The committee heard heartbreaking evidence of children separated from one of their parents by inflexible Family Court orders, which caused anguish to parents and children alike and which had long-term detrimental effects on children. The so-called 'shared parenting' laws were introduced by the Howard government in 2006 in response to that report. The changes to the family law system included changes to both the legislation and the family relationship services system. The main elements of the legislative changes were to require parents to attend family dispute resolution before filing a court application, except where there are concerns about family violence and child abuse; to place increased emphasis on the need for both parents to be involved in their children's lives after separation, including the introduction of a presumption of shared parental responsibility; to place greater emphasis on the need to protect children from exposure to family violence and child abuse; and, finally, to introduce legislative support for less adversarial court processes in children's matters.

The legislative suite included a requirement for the Australian Institute of Family Studies to undertake a large-scale longitudinal evaluation of the effects of the reforms. That evaluation was completed in December 2009, and I will return to its findings a little later in this speech. The coalition is very proud of the Ruddock reforms and justly so.

I turn now to the bill before the House. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is a bill to amend the Family Law Act 1975 by including an additional object to give effect to the UN Convention on the Rights of the Child, to which decision-makers may have regard when dealing with children's matters; by changing the definition of family violence and abuse; strengthening the obligations of lawyers, dispute resolution practitioners, family consultants and family counsellors to prioritise the safety of children; requiring inquiry and reports on family violence and child abuse to be part of court proceedings; repealing the so-called 'friendly parent' provision; repealing the provision for cost orders in the case of false family violence applications; and providing for simpler procedures for the participation of child welfare agencies in family law proceedings. Some of these amendments will have the coalition's support. Others, however, in our view seek to wind back the Ruddock reforms and will be opposed. I will deal with the substantive provisions in turn.

Prioritising the safety of the child: the bill proposes to insert a new subsection to section 60CC, which requires the court, when determining what is in the child's best interests, to give greater weight to the primary consideration that protects the child from harm where there is inconsistency in applying the two primary considerations—the other consideration being the benefit to the child of having a meaningful relationship with both parents. This amendment is unnecessary and gratuitous. The existing section 60CA makes the best interests of the child the paramount consideration, and existing section 60B clearly articulates that a meaningful relationship with a parent is subordinate to the paramount consideration.

In purported aid of the objective of this amendment, the bill seeks to add, as a further object of part 7 of the act, that it is to give effect to the UN convention. The explanatory memorandum states that the intention is to confirm, in cases of ambiguity, that part 7 should be interpreted consistently with the convention. However, to the extent that the act departs from the convention, the act will prevail. The proposed amendment does not incorporate the convention into domestic law. Given that the act already gives effect to the principle of the paramountcy of the best interests of the child, the need for this amendment is not clear. At this stage this is a matter for the consideration of the Senate committee. The opposition reserves its position as to whether this amendment will ultimately be necessary.

I turn to the definition of family violence. The exposure draft of this bill proposed a definition of family violence that included any behaviour that was subjectively emotionally, psychologically or economically abusive or threatening. Many stakeholders have voiced their concern that any instance of marital discord could be tailored to fit this definition. The definition now proposed defines family violence as:

… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful.

It differs from the existing definition in that it imposes a subjective test. The existing definition requires a reasonable fear for the family member's wellbeing or safety.

The new definition attempts to qualify its subjectivity by incorporating a list of examples of behaviour which includes assaults, repeated derogatory taunts, damage to property and other unreasonable or criminal behaviour. However, it is an open question as to whether the list of examples is sufficient to frame and limit the subjective definition. There is no doubt that any of these behaviours exhibited would cause a person to be fearful. They would also give rise to a reasonable fear for a person's wellbeing or safety under the existing test.

The problem with the subjective test is that a person seeking to demonstrate that another person is violent need only state that he or she fears controlling or coercive conduct. The state of mind need not be reasonable. The consequences of a finding of violence can be drastic and permanent. It is not appropriate that a court need not inquire as to whether the fear is well founded. Accordingly, the coalition will press for the retention of the objective test in the existing legislation.

I turn to identification, inquiry and reporting on family violence and child abuse. The Australian Institute of Family Studies evaluation found that the legislative changes introduced as part of the 2006 reforms placed greater emphasis on the need to protect children from harm and from exposure to family violence and child abuse. This meant that the identification of, and response to, family violence became more systemic under the reforms. However, it found that improvements still need to be made in identifying and responding to pertinent safety concerns. The proposed amendments broaden the reporting requirements in this regard to interested persons rather than just the parties in child related proceedings. This will include independent children's lawyers, dispute resolution practitioners, family consultants and family counsellors. There is a continuing need to improve responses to child safety concerns and it is recommended, subject to the specific findings of the Senate committee, that these amendments be supported. Similarly, the record of child welfare agencies in family law proceedings has in many cases been deeply unsatisfactory. Amendments to improve their participation and accountability are welcomed by the coalition.

Turning to the repeal of the friendly parent provision, section 60CC(3)(c) of the act currently requires family courts to consider the willingness of one parent to facilitate the other having a meaningful relationship with the child. The provision has been criticised as discouraging parents from disclosing family violence and child abuse for fear of being found to be 'unfriendly'. The bill seeks to repeal this provision and replace it with considerations of the extent to which each of the child's parents has taken or failed to take the opportunity to participate in major long-term decisions in relation to the child, spend time with and communicate with the child and the extent to which each of the parents has fulfilled or failed to fulfil parental obligations to maintain the child. These criteria already exist in section 60CC(4).

The explanatory memorandum cites the Australian Institute of Family Studies evaluation and the Family Law Council report as the basis for the repeal of this provision. This is misleading. The Australian Institute of Family Studies found that some concerns were expressed that the provision discouraged the reporting of violence, but there was no statistical information to suggest that this was actually the case. The criticism was in fact voiced in the Chisholm report, which was uncited in this bill's explanatory memorandum, and was described as 'gossip' by the Family Law Council. Failure to facilitate a relationship between a child and a separated parent remains a salient issue for the attention of a court and has been found to be an incident of emotional abuse in several reported cases. If the enhanced violence and abuse reporting obligations are supported, there can be no reason for a parent's obstructive behaviour to be excluded from consideration.

I will turn to the final matter that concerns the opposition, which is cost orders in relation to false allegations of abuse and violence. The bill repeals section 117AB, which provides for mandatory cost orders, albeit that some such orders might cover only a portion of the costs. These orders are made when a party knowingly makes a false allegation or statement in the proceedings. The explanatory memorandum cites the Australian Institute of Family Studies evaluation and the Family Law Council report as finding that the section operates as a disincentive for disclosing family violence. Again, this is misleading. The Chisholm report alludes to practitioner concern as the basis for its recommendation for repeal, but neither of the major studies cited make any substantive finding. The Family Law Council report in fact recommends that the provision be clarified with an explanatory note or public education campaign.

It should be noted that the test within section 117AB is a stringent one. A mandatory costs order could not arise from evidence that was not preferred in the circumstances or even from evidence given recklessly or without belief. It applies only to knowingly false evidence. If a court was prepared to make such a finding, there is no reason why a costs order should not follow. Individual members of the judiciary have confirmed that such false accusations are by no means unknown and that sanctions should apply in such cases.

The policy objectives of the 2006 reforms were to help build strong, healthy relationships and prevent separation, to encourage greater involvement of both parents in their children's lives after separation, to protect children from violence and abuse, to help separated parents agree on what is best for their children rather than litigating through the provision of useful information and advice and effective dispute resolution services, and to establish a highly visible entry point that operates as a doorway to other services and helps families to access those other services.

As the Australian Institute of Family Studies evaluation confirmed, the legislative changes introduced as part of the reforms placed greater emphasis on the need to protect children from harm and from exposure to family violence and child abuse. This meant that the identification of and response to family violence became more systemic under the reforms. The Ruddock reforms have been the subject of criticism. However, all the indications are that the reforms have been largely successful. Many of the criticisms have arisen from misinterpretations, whether wilful or otherwise. Sensibly, the government has withdrawn from its more radical proposals and at this stage will leave the core shared parenting provisions largely intact. However, it is disturbing that it has accepted the criticisms of the friendly parent and cost order provisions at face value and has misleadingly cited positive or neutral findings on those provisions in support of its proposed amendments.

The coalition will always support any sensible proposals to reduce the exposure of children to abuse and family violence. Our record indicates that and it takes these issues very seriously. Some of the amendments proposed by this bill are worthy of support. However, as I have said, it must be recognised that proceedings in the family jurisdiction are some of the most bitterly contested and intractable found in any litigation. Judges and practitioners are well aware that child related proceedings may be brought for any number of collateral purposes—which of course is in itself a form of child abuse—and that mechanisms must exist to deal with this. For these reasons, I will be moving the amendments that have already been circulated in the chamber.

See this speech in context